The Supreme Court’s credibility should not be left to the honour of its members

Despite the frailties and foibles of CJIs and judges, for most Indians, the Supreme Court was an institution that was incorruptible, wise, unprejudiced, and which always looks out for the greater good as well as the interests of those who usually tend not to have a voice. That perception is now gone

Goings-on in the Supreme Court of India have surprised and dismayed many. To have Nos. 2, 3, 4, and 5 (as court reporters and lawyers insist on referring to the second, third, fourth, and fifth senior most judges after the Chief Justice of India) complain in public, in a press conference called for that very purpose, about the highest judicial office in the land, is disturbing, worrying, and casts a shadow over the entire judicial system in the country.

Several of us have always known that all is not well in the Supreme Court, just as we have known that not all CJIs have been beyond reproach. Still, despite the frailties and foibles of the CJIs and judges, overall, overwhelmingly, for most Indians, the first thing that comes to mind when someone mentions the Supreme Court, is an institution that is incorruptible, wise, unprejudiced, and which always looks out for the greater good as well as the interests of those who usually tend not to have a voice.

That perception is now gone. The rift in the Supreme Court is now fodder for the 24x7 news mill. Across TV debates and editorials, politicians, columnists, judicial experts are all airing insinuations, connecting dots, and imputing motives — the kind of thing few would dare do with the higher judiciary previously (and not just out of fear of contempt). While the angle of personal antipathy has been ignored (fortunately so; even though there’s no love lost between some of the individuals involved, the issues raised don’t seem to have anything to do with that), that of political motives hasn’t. And so, like many other debates of our times, this one too has been polarised along pro- and anti-Modi lines.

Enough has been said about many of these issues over the past eight days since the press conference of the four judges on January 12. This column’s focus is going to be on two issues — one fundamental, the other, procedural — that could prevent the recurrence of a similar controversy if addressed.

At the core of the controversy is the way that judges are named to the Supreme Court (and Chief Justices are appointed in the high court). This happens through the collegium, a group of senior judges in the Supreme Court, including the CJI. There have been efforts to reform, even change this process, but the apex court has, inexplicably, maintained that this is the best way of selecting Supreme Court judges and high court Chief Justices.

A very senior politician recently told Chanakya that a few years ago he met a former Chief Justice of India who claimed that he (the former CJI) could list all future CJIs till the year 2030. While discounting the obvious exaggeration on part of both the former CJI and the politician who narrated the anecdote, it makes sense to look at the claim closely. Sure, the CJI is traditionally the senior most judge in the court, so it is mathematically possible to name his successor, his successor’s successor, even his successor’s successor’s successor. To do so for any period exceeding a decade, though, will also require inside information on which chief justices of high courts will make it to the Supreme Court, maybe even which judges of these high courts will be made a high court Chief Justice. Chanakya isn’t sure this is the way it happens, but this is possible, at least on paper.

The same politician mentioned a related issue. Most of India’s top lawyers and judges come from 50-100 families he claimed. This is not a fact, especially given the new crop of professional lawyers that has emerged in India, but there are enough examples to make it appear to be one.

Together, the two make the collegium approach to selecting judges seem downright insidious and that’s a perception the Supreme Court can do without. All good institutions must have in-built mechanisms to ensure they are not dependent on the honour of their members.

The second point this columnist wants to make is on transparency. The Supreme Court roster appears to be a well-kept secret that not even lawyers who have been practising in the court for years are privy to. This document must be made public, perhaps put up on the website of the court. The assignment of important cases, flagged by the Supreme Court registry, could perhaps be made by a group of senior judges including the CJI. In their talks with the CJI in efforts to resolve the ongoing crisis, the four judges have made a similar demand.

A better process of selecting judges to the Supreme Court, and a transparent and rules-based approach to assigning cases could have well avoided the occurrence of a crisis such as the current one.

Chanakya has already made the point once but it merits repetition: the credibility of institutions is far too important to be left to the nature of men, no matter how honourable they may be.